Death By Three Strikes.

by David Klemke on October 29, 2009

I often wonder what goes into formulating some of the laws that end up getting passed in various governments around the world. Some are done with truly altruistic intentions such as Obama’s universal health care plan for all Americans (taking note that 62% of bankruptcy filings are due to medical bills) whilst others seem to be based on the need to appease the lobbyists. It would seem that for some reason that the legislators of Europe have been watching far too much baseball whilst being pestered by copyright holders the world over:

In the EU, the amendment, which would protect against 3-strikes laws by requiring due judicial process to occur before any sanction (such as cutting off Internet access), has been substantially watered down. Meanwhile, in France the Constitutional Court has ruled in favor of a slightly modified version of HADOPI – their legislation which includes a 3-strikes sanction.

On Tuesday, the Parliament gave up on Amendment 138, which had been voted on twice by the assembly, gaining a majority both times. The amendment was supposed to protect the rights of citizens from being treated as guilty upon the accusations of an industry group, and punished based on the same. It read;

Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.

Instead, they are now considering a version which does not guarantee the right to an effective and timely judicial review.

When I first heard about the “three strikes” rule that some governments were considering I didn’t think it was a great idea to begin with. Whilst I’m not a rabid anti-copyright supporter (I believe there is a place for it however it needs to be reworked for today’s world) the idea of a copyright holder being able to submit complaints against an Internet user and have them disconnected without any fair process is something I couldn’t support. It had been voted down several times in the past and I had hoped that it was dead in the water. However it appears that whoever is behind driving this legislation home is not going to give up that easily. Truly it would seem that we might be shifting from the war on drugs to the war on copyright infringement (and we all know how effective these wars are, don’t we?).

No politician would want to be seen as weak on people deemed to be criminals so resistance to the three strikes idea has been weak. Sure there’s the usual suspects in the Pirate Party and the socialist parties (oh no the communists are back!) but there was one small ray of opposition that went almost completely unnoticed. Sure it wasn’t directly targeted at the three strikes rule, but it nullifies it all the same:

Finland’s Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right, YLE, the country’s national broadcasting company, reported on Wednesday.

According to the report, every person in Finland (a little over 5 million people, according to a 2009 estimate) will have the right of access to a 1Mb broadband connection starting in July. And they may ultimately gain the right to a 100Mb broadband connection.

Just more than a year ago, Finland said it would make a 100Mb broadband connection a legal right by the end of 2015. Wednesday’s announcement is considered an intermediate step.

Finland isn’t a large country by any standards but they are still very technologically progressive nation. Their broadband penetration is the 12th highest in the world smashing Australia and New Zealand (who even have a higher GDP than Finland!). It makes sense then that such a nation would take a stance on such idiocratic laws by making Internet a human right, since no one will argue with them doing this (what’s the point with trying to strong arm a small nation like that?) and they can serve as a spearhead for other countries to follow suit. I’m rightly impressed with Finland on this one and I hope the other members of the European Union take notice.

Let’s not forget that our little brother across the Tasman tried this kind of shenanigans just over 6 months ago. The legislation was shot down in a blaze of glory but that didn’t stop them from trying to work it into another form to get it passed. I fail to see the motivation for bringing the policy into New Zealand (I hesitate to point fingers at the minister for commerce Simon Power trying to appease the copyright industry) but the reformed policy did address many of the issued raised. Still it lacked a coherent due process and much of the responsibility remained with the ISP. In essence they were creating more work for the ISPs whilst adding no value, angering their customers all to attempt to stop people from infringing on other’s copyrights.

The problem really isn’t the medium that the people are using to infringe on copyright as it was happening long before the Internet was commonplace. Ever make a mix tape of your favourite tracks for your friends? Infringement. Ever record a TV show off using your Betamax recorder? Infringement. What the rights holders are afraid of now is that the ability to infringe is easy, promiscuous and socially acceptable. I’m not going to lie and say that it isn’t a threat to their business models because it is, since anyone who’s inclined can get their product for practically nothing. However, their defending of their rights is the wrong way to go about getting these people back as paying customers.

For the most part many people will get their music and movies via nefarious means because its easy. I can’t count the number of times I’ve struggled for hours with various licensing systems of products to try and get them to work properly. It’s all too easy to hit up your favourite torrent engine and just find a crack for it to fix the problem whilst I wait several weeks for the vendor to get back to me. Right now the value perceived in the product and the risk associated with infringement is so low that paying for the product doesn’t seem worth it. If the rights holders want to weather this storm they need to come up with ways of making the legitimate products more attractive to users than their pirated counterparts, something I’ve blogged about before.

There’s also the problem with copyright holders abusing the court system in order to try and make examples of people who they believe have infringed on their rights. The Internet is a dynamic beast and the methods used to identify people have thus far proved to be highly inaccurate. Companies like MediaSentry have been used in the past to try and identify copyright infringers with highly controversial results. Indeed such companies have shown their dislike for anyone using the technology, even legitimately, by employing such tactics as automated DDOS attacks in order to appease their corporate overlords. It is then much easier for the rights holders to lobby for such policy such as the three strikes rule, since they can then circumvent that whole messy process of gathering evidence.

Policy like this is a band aid solution to a much wider problem that the copyright holders are trying ignore in the hopes that they can cling to business models that no longer work with technological revolutions. This is not a new phenomenon either and for over 100 years they’ve fought tooth and nail against anything that threatens to change the status quo. Its no wonder that once it became easy and low risk that people started infringing en mass, we’ve had 100 years of being stifled by these companies and now people are starting to talk with their wallets. Hopefully the rights holders will bleed enough to make innovation instead of litigation seem like best path for profit.